ID: nht87-1.34

TYPE: INTERPRETATION-NHTSA

DATE: 02/20/87

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: Senator Strom Thurmond

TITLE: FMVSS INTERPRETATION

ATTACHMT: 3/22/79 letter from Frank Berndt to Sterling Troxel; 10/5/78 letter from Joseph J. Levin to Charles B. Honeycutt; 12/29/77 letter from Joseph J. Levin to Kentucky Dept. of Education; 3/20/78 letter from J.J. Levin, Jr., to Nebraska Dept. of Mot or Vehicles

TEXT:

Dear Senator Thurmond:

Thank you for your December 8, 1986, letter enclosing correspondence from your constituent, Mr. Roy H. Herron of the Anderson County School District No. 3 in Iva, concerning our school bus regulations. Your letter has been referred to my office for reply , since the National Highway Traffic Safety Administration (NHTSA) is responsible for administering Federal programs relating to school bus safety.

In his letters to you' Mr. Herron expressed his concern with Federal laws Which he believes prohibit the school district from using 15-passenger vans manufactured on or after April 1, 1977, that do not meet Federal school bus standards. be argues that th ere is a need for school districts to use 15-passenger vans and suggests that we amend our regulations to permit their use.

I appreciate this opportunity to clarify our regulations for school buses. As explained below, the Federal requirements apply only to the manufacture and sale of new school buses, not to the operation of school buses after they have been purchased. Thus, there is no Federal law that prohibits the Anderson County School District from using their 15-passenger vans to carry school children. Federal law does, however, affect the manufacture of the vans and their sale to school districts.

I believe it might be helpful to begin with some background information on our school bus regulations. NHTSA has the authority, under the National Traffic and Motor Vehicle Safety Act, to regulate the manufacture and sale of new motor vehicles. In 1974, Congress enacted the School bus and Motor Vehicle Safety Amendments which directed NHTSA to issue motor vehicle safety standards on specific aspects of school bus safety and apply those standards to all vehicles designed to carry more than 10 passengers and likely to be significantly used for student transportation. The school bus standards we issued became effective April 1, 1977, and apply to each new school bus manufactured on or after that date. School buses manufactured prior to the effective date of the safety standards were not required to be designed and built in compliance with those standards.

Under the Vehicle Safety Act, manufacturers of school buses must ensure that their new vehicles meet all Federal safety standards applicable to buses and also those specifically applicable to school buses. The Safety Act also requires each person selling a new "school bus" to ensure that the bus complies with our school bus safety standards or be potentially subject to fines under Federal law. We define a "school bus" as a motor vehicle designed for 11 or more persons (driver included) and intended for transporting students to and from school or related events. Since new 15-passenger vans that are sold to the Anderson County School Districts are considered "school buses" under Federal law, persons selling such vans must ensure that the vans conform to Federal school bus safety standards.

Mr. Herron suggests that the definition of a school bus be amended to provide that passenger capacity be extended to 15 passengers. NHTSA's definition of a school bus necessarily follows the statutory definition of that term. Without a change by Congress in the statutory definition, our definition must remain as it is.

Your constituent argues in his letter to you that 15-passenger vans should be safe enough for school children since they are safe for other passengers. The legislative history of the School bus amendments of 1974 indicate that Congress believed that spec ial measures should be taken to protect school children who use school bus transportation. Fifteen-passenger vans (i.e., buses) meeting our school bus safety standards provide more safety features than other buses. School buses must meet stringent perfor mance requirements, including those for interior protection, fuel systems, emergency exits, windows and windshields and seating systems.

New 15-passenger vans, conforming to our school bus standards, may be sold to the Anderson County School Districts to transport its pupils to school related events. The school districts may also purchase 9-passenger vans for school transportation, becaus e such vans are considered "multipurpose passenger vehicles"' (MPV's) and not "school buses" under Federal law. We do not prohibit the sale of new MPV's to carry school children nor do we require then to comply with Federal school bus safety standards. I nstead, they must meet the performance requirements set by the safety standards for MPV's, which also provide high levels of passenger safety.

I hope this information is helpful. Please contact my office if we can be of further assistance.

Sincerely,

Erika Z. Jones Chief Counsel

December 8, 1986 Mr. David Sloane, Director Congressional Affairs Department of Transportation Suite 10406, 400 Seventh Streets S. W. Washington, D.C. 20590

Dear Mr. Sloan:

I have enclosed for your review communication from Mr. Roy H. Herron regarding the regulations pertaining to the transporting of students to and from school.

It is my understanding that your regulations allow schools to use vans that Here manufactured on or before April 1, 1977 that do not comply with school bus safety standards, but the schools are not allowed to use new vans unless they comply with all the school bus safety standards.

I would appreciate your explaining these regulations and giving me an up to date status report of this case.

With kindest regards and Greetings of the Season,

Sincerely,

Strom Thurmond

ST/hk Enclosure

November 25, 1986

The Honorable Strom Thurmond The United States Senate Washington, D. C.

Attention Mr. Jeff Kull

Dear Sir:

This letter is follow-up to our conversation this date concerning the use of vans to transport school students to related events.

The more we read into this problem it appears that the Department of Transportation is concerned only with vehicles introduced into the transportation system.

The attached letter, dated March 22, 1979, from then Acting Chief Counsel Frank Berndt to Mr. Sterling Troxel states in paragraph three that "the National Highway Traffic Safety Administration does not regulate the sale or use of used vehicles. Therefore , there would be no Federal penalty upon a person selling such a used vehicle for school use."

This whole set of regulation is arbitrary. Under current regulations a church group can transport our school students on Saturday and/or Sunday in the same type vehicle we use and be legal.

Your assistance in getting this regulation changed or waived so that school districts can use vans designed to carry 15 passengers or less, including driver, will be appreciated.

Sincerely,

Roy H. Herron Superintendent

encls.

The Honorable Strom Thurmond United States Senator Senate Office Building Washington, D. C. 20515

Dear Senator Thurmond:

The purpose of this letter is to ask for your assistance. We have recently been made aware of Department of Transportation regulations (attached) that prohibit the use of vehicles designed to trans- port more than 10 passengers, that were manufactured af ter 1977, for the purpose of transporting school students unless the vehicle meets school bus specifications.

This school district and the vast majority of other districts in South Carolina use vans for transporting cheerleaders, small athletic teams, students on field trips and other academic related activities.

This regulation does not seem to be well thoughtout. Either a vehicle is safe to carry passengers or it is not; whether they be school children or adults. A van with its higher gross vehicle weight and seats installed higher than most other traffic is mu ch safer than a station wagon or automobile.

The impact of complying with this regulation is substantial. To replace our two vans with minibuses will cost our district $60,000 plus increased operating expenses. We are a small district, therefore, the impact on larger districts is even greater.

We have operated vans for many years with a perfect safety record. They serve a need most effectively and efficiently.

A remedy that will aid all school districts in South Carolina is for DOT to amend its regulation so that vehicles designed to carry 15 passengers or less be exempt from school bus standards. This change will not contribute to reduced safety for our stude nts.

Your assistance in this matter is most appreciated.

Sincerely,

Roy H. Herroxn Superintendent

(See letters from NHTSA to Sterling Troxel, Charles B. Honeycutt, Nebraska Dept. of Motor Vehicles and Kentucky Dept. of Education)

ID: nht87-1.35

TYPE: INTERPRETATION-NHTSA

DATE: 02/20/87

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: Butler Derrick -- U.S. House of Representatives

TITLE: FMVSS INTERPRETATION

ATTACHMT: 3/22/79 letter from Frank Berndt to Sterling Troxel; 12/29/77 letter from Joseph J. Levin to Kentucy Dept. of Education; 10/5/78 letter from Joseph J. Levin to Charles B. Honeycutt

TEXT:

Thank you for your letter to Secretary Dole enclosing correspondence from your constituent, Mr. George Seaborn of the South Carolina Association of School Superintendents, concerning Federal regulations for school buses. Your letter has been referred to my office for reply, since the National Highway Traffic Safety Administration is responsible for administering Federal programs relating to school bus safety.

In his letter to you, Mr. Seaborn expresses his concern about a Federal regulation that "excludes the use of vans capable of transporting more than 10 persons from use by schools." Mr. Seaborn explains that it would be difficult for school districts to c omply with a restriction on van use since large vans are extensively used for pupil transportation. He believes that schools should be permitted to use vans since those vehicles are safe for transporting passengers other than school children.

I appreciate this opportunity to clarify our school bus regulations. As explained below, there is no Federal prohibition directed against schools or school districts which prevents them from using vans carrying 11 or more persons. Federal law does, howev er, affect the sale of buses to schools. NHTSA has the authority, under the National Traffic and Motor Vehicle Safety Act, to regulate the manufacture and sale of new motor vehicles. In 1974, Congress enacted the Schoolbus and Motor Vehicle Safety Amendm ents to direct NHTSA to issue motor vehicle safety standards on specific aspects of school bus safety and apply those standards to all "school buses." The school bus standards we issued became effective April 1, 1977, and apply to each school bus manufac tured on or after that date.

The parties subject to the Vehicle Safety Act are the manufacturers and sellers of new school buses. The Vehicle Safety Act requires each person selling a new "school bus" to ensure that the bus complies with our school bus safety standards. Under Federa l law, a van designed for 11 or more persons (driver included) is a "bus," and is a "school bus" if intended for transporting students to and from school or related events. A person way sell a new bus (including a van designed to carry 11 or more persons ) to a school or school district provided that the vehicle meets our motor vehicle safety standards for school buses.

Because our regulations apply only to the manufacture and sale of new motor vehicles, we do not prohibit school districts from using their large vans to transport school children even when the vehicles do not meet Federal school bus safety standards. Mat ters relating to motor vehicle use are determined by state law. However, in the event a South Carolina school district decides to buy a new school bus, we would like the district to keep in mind that the seller would be obligated under the Vehicle Safety Act to sell complying school buses. The seller should ' know that he or she risks substantial penalties if a noncomplying bus is sold as a school bus.

Since Mr. Seaborn is interested in transporting students in vans, I would like to clarify a few additional matters concerning our school bus regulations. In his letter to you, your constituent expresses a belief that large vans (i.e ., buses) should be s afe for school children since they are safe for other passengers. The legislative history of the Schoolbus Amendments of 1974 indicate that Congress believed that special measures should be taken to protect school children who use school bus transportati on. Fifteen-passenger vans (i. e., buses) meeting our school bus safety standards provide more safety features than other buses. School buses must meet stringent performance requirements, including those for interior protection, fuel systems, emergency e xits, windows and windshields and seating systems.

New 15-passenger vans, conforming to our school bus standards, may be sold to school districts to transport their pupils to school related events. School districts nay also purchase 9-passenger vans for school transportation, because such vans are consid ered "multipurpose passenger vehicles" (MPV's) and not "buses" or "school buses" under Federal law. We do not prohibit the sale of MPV's to carry school children nor do we require them to comply with Federal school bus safety standards. Instead, they mus t meet the performance requirements set by the safety standards for MPV's, which also provide high levels of passenger safety.

I hope this information is helpful. We have provided a similar letter to Congressman Robin Tallon who contacted us on behalf of Mr. Seaborn. Please let us know if we can be of further assistance to you and your constituents.

Sincerely,

Erika Z. Jones Chief Counsel

The Honorable Elizabeth H.Dole Secretary of Transportation U.S. Department of Transportation 400 7th Street, SW Washington, D.C. 20590

Dear Secretary Dole:

Enclosed please find a copy of a letter I received from Mr. George W. Seaborn, President, South Carolina Association of School Superintendents. It concerns the Department of National Highway Safety Administration's standards which exclude the use of vans capable of transporting more than ten persons from use by schools.

I would sincerely appreciate the appropriate member of your staff reviewing this matter. Please provide me a response that I may share with Mr. Seaborn.

Thanking you in advance for your cooperation, I am

Respectfully

BUTLER DERRICK MEMBER of Congress

D/cm

Congressman Butler C. Derrick, Jr. P. O. Box 4126 Anderson, SC 29622

Dear Congressman Derrick:

You will see from the enclosed material that in 1977, the Department of National Highway Safety adopted a standard which excludes the use of vans capable of transporting more than ten persons from use by schools. None of the administrators in South Carol ina were aware of this legislation until recently. I am sure that you know that there are hundreds of these vans being operated by South Carolina school districts and many thousands more by school districts across our land. We have three in our school di strict which belong to the state and are furnished to us for the purpose of transporting children to our child development program. We also have our own vans which are used to transport small groups such as golf team, cheerleaders, etc.

All of these vans were legally purchased on the open market in South Carolina. It seems to me that if these vehicles are unsafe to transport youngsters then they are unsafe to transport any citizens in our nation. On the other hand, if they are considere d safe to transport citizens in this country who are not school students, they should be safe to transport school students. This regulation implies that certain classes of our citizens are entitled to higher safety standards than other classes.

I have been asked by my colleagues throughout the state to urge your immediate attention to this matter as all it is doing at the present time is creating additional liability for our schools systems. There is no way I can tell the parents for instance i n our child development program that we can no longer transport their children to their child development classes. I respectfully await your prompt action concerning this matter.

Sincerely,

George W. Seaborn, President South Carolina Association of School Superintendents

November 17, 1986

MEMORANDUM TO: AREA, COUNTY AND DISTRICT SUPERINTENDENTS OF EDUCATION

FROM: H. G. HOLLINGSWORTH, JR., DEPUTY SUPERINTENDENT DIVISION OF FINANCE AND OPERATIONS

SUBJECT: SPECIFICATIONS FOR SCHOOL VANS

The Department of Education has been asked to clarify the use of vans owned by school districts as it relates to transporting school children to various school activities.

The. U. S. Department of Transportation, National Highway Traffic Safety Administration, adopted safety standards effective April 1, 1977, which applies to vans transporting school children. The standard requires any vehicle manufactured on or after Apri l 1, 1977, designed to carry more than 10 persons and which is sold to transport school children to or from school or related events must comply with all of the school bus safety standards. It should be noted that vehicles must comply with the standards regardless of the number of students being transported in the vehicle.

For a school district to modify a van purchased after 1977 to meet the standards, would, in our opinion, be cost prohibitive, inasmuch as the standards would require so many changes in the body construction such as tank protection, overhead strength, sea ts, etc.

Attached for your information are copies of letters addressed to individuals in other states from the U. S. Department of Transportation in regard to the above referred to subject.

HGH,Jr :gb Enclosures

See letters from NHTSA to Sterling Troxel, Charles B. Honeycutt and Kentucky Dept. of Education

ID: nht87-1.36

TYPE: INTERPRETATION-NHTSA

DATE: 02/20/87

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: Mr. Martin V. Chauvin

TITLE: FMVSS INTERPRETATION

TEXT:

Mr. Martin V. Chauvin Chief, Carrier Safety Bureau New York Department of Transportation Albany, N.Y. 12232

Dear Mr. Chauvin:

This responds to your two letters to this agency concerning safety belts on school buses. Your October 24, 1986 letter to this office asked for clarification of a Federal Register notice issued by NHTSA in 1976 which stated that seats on large school bus es are strong enough to absorb the seat belt loads set for belts on smaller school buses. Your October 29, 1986 letter to NHTSA's Office of Vehicle Safety Standards, which has been referred to my office for reply, concerned manufacturers' test data for h ead form impact requirements of Standards No. 222 and No. 208. apologize for the delay in responding to your letters.

Your first letter pertained to retrofitting safety belts on large school buses meeting Standard No. 222. You referred to a 1976 Federal Register notice in which NHTSA said that seats on large school buses that meet Standard No. 222 are strong enough to a bsorb safety belt loads. You explained that school bus manufacturers disagree with those statements and have indicated that they are not true for most seats on large school buses manufactured since 1977. Your question asked whether manufacturers are requ ired to equip large school buses with seats that are strong enough to meet the load requirements set for safety belts in small school buses.

The answer to your question is no. Seats installed on large school buses must meet their own strength requirements set by Standard No. 222. Manufacturers are not required to install seats on large school buses that are capable of meeting the load require ments set for safety belts on small school buses.

For your information, I am enclosing a May 11, 1978 letter from former Chief Counsel Joseph Levin to Dr. Arthur Yeager, in which we discuss the statement made in Notice 5 of Docket 73-3 you referenced in your letter. Mr. Levin's letter explains that NHTS A had proposed safety belt requirements for large school buses that would have set lower belt load requirements than those currently applicable to small school buses. (I) addition, the proposed sear strength requirement was higher than that adopted in St andard No. 222.2 Mr. Levin explains that the statement made in Notice 5 was referring to the safety belt requirements formerly proposed for the seats on large school buses, which the seats would be capable of withstanding. It did not mean to imply that t he seats on large school buses were strong enough to be retrofitted with safety belts and meet the requirements applicable to belts on small school buses.

We believe that manufacturers can design the seats on large school buses to accommodate safety belts which meet the load requirements applicable to belts on the smaller school buses. As you know, NHTSA proposed an amendment to Standard No. 222 which woul d set such a strength requirement for safety belts voluntarily installed on new large school buses, to ensure that proper belt installations are made. If adopted, the amendment would supersede any conflicting statements in the Yeager letter concerning th e load requirements applicable to new large school buses.

In your second letter, you explained that New York enacted a law which sets certain head form impact requirements for school buses. You would like to obtain information from manufacturers regarding the values they obtained for the actual axial accelerati on of the head form pursuant to Standards No. 208 and No. 222. You asked whether motor vehicle manufacturers are required to submit such test data to NHTSA.

The answer to your question is no. The National Traffic and Motor Vehicle Safety Act establishes a "self-certification" process under which each manufacturer of motor vehicles or items of motor vehicle equipment is responsible for certifying that its pro ducts meet all applicable motor vehicle safety standards. This process requires each manufacturer to exercise due care in selecting and conducting the mathematical calculations, computer simulations or testing that form the basis for that certification. That data is retained by the manufacturer, and is not submitted to NHTSA for approval. NHTSA can request manufacturers to produce records to show how it determined compliance if a question should arise as to the compliance of a particular product with NH TSA requirements.

Please note that the New York legislation you mentioned raises an important preemption issue. Federal preemption of State motor vehicle safety standards is governed by S103(d) of the Vehicle Safety Act, which states:

Whenever a Federal motor vehicle safety standard under this subchapter is in effect, no State or political subdivision of a State shall have any authority either to establish, or to continue in effect, with respect to any motor vehicle or item of motor v ehicle equipment any safety standard applicable to the same aspect of performance of such vehicle or item of equipment which is not identical to the Federal standard. Nothing in this section shall be construed to prevent the Federal Government or the gov ernment of any State or political subdivision thereof from establishing a safety requirement applicable to motor vehicles or motor vehicle equipment procured for its own use if such requirement imposes a higher standard of performance than that required to comply with the otherwise applicable Federal standard.

We understand that New York's law requires passenger safety belts and additional seat padding on all new school buses manufactured for use in New York. The New York law applies to the same aspect of performance (i.e., passenger crash protection) as Stand ard No. 222 but specifies performance requirements that are not identical to the Federal standard. In requiring the belts and the additional padding, the New York law is specifying higher requirements than those in the FMVSS. Section 103(d) preempts high er state requirements except to the extent that they apply to vehicles procured for the State's use. Therefore, the New York law is preempted under the first sentence of S103(d) to the extent that the law requires all school buses manufactured for use in New York to be equipped with belts and extra padding. The law is not preempted to the extent that it requires belts and additional padding for public school buses. The phrase "vehicles procured for (the State's) own use" includes public school buses and school buses operated and owned by a private contractor under contract to transport children to and from public school.

I hope this information is helpful. Please contact us if you have further questions.

Sincerely,

Erika Z. Jones Chief Counsel

October 24, 1986

Ms. Erika Z. Jones Office of Chief Counsel National Highway Traffic Safety Administration 400 7th Street, South West Washington, D. C. 20590

Dear Ms. Jones:

The New York State Department of Transportation has been designated by New York statute as the agency responsible for promulgating regulations dealing with seat belts on school buses, In pursuing this assignment, we have been presented with a problem tha t needs clarification from your office.

Enclosed are two documents that refer to standards being considered by the National Highway Traffic Safety Administration (NHTSA). One document is a copy of a page (4017) of the Federal Register, Vol. 41-No. 19-Wednesday, January 28, 1976 (the specific d ate is somewhat blurred but it is definitely January 20 something 1976). The second document is identified as "Preamble to Motor Vehicle Safety Standard No. 222" and is dated October 26, 1976. The question we need clarification on is addressed in both do cuments.

We have been provided an interpretation of these documents (underlined or otherwise marked to identify particular item in question) that indicates that school buses, since 1977 have been required to provide seats that meet safety standard 222 and as such must be capable of accommodating seat belts. School bus body manufacturers advise us that this is not true. In fact, the manufacturers advise us that better than 95 percent of the buses manufactured since 1977 would not be equipped with seats that can a ccommodate seat belts.

We are looking to you to help clarify this matter. In essence, we want to know If manufacturers are required to equip school buses with a GVWR of more than 10,000 pounds with seats that can accommodate seat belts (for example, meet the federal standards that have been spelled out for buses with a GVWR of 10,000 pounds or less).

We are faced with some severe time constraints so we would appreciate a response at your earliest possible convenience.

Thanks for your help.

Sincerely,

MARTIN V. CHAUVIN, Chief Carrier Safety Bureau

October 29, 1986

Mr. William Smith Department of Transportation N.R.M.-12 Room 5320 400 7th Street Washington, D. C. 20590

Dear Mr. Smith:

Enclosed is a copy of a bill that was enacted into law on July 30, 1986 and sets certain requirements for seat belts and seat back padding for school buses.

Section 142 of the New York State Vehicle and Traffic Law provides a broad definition of school bus and applies to passenger cars if used by a school district or by others on a for hire basis to transport pupils. This law specifies that these school buse s (including passenger cars) must meet the head form impact requirement as spelled out in Federal Motor Vehicle Safety Standard (FMVSS), 49 CFR Section 571.222 except the impact requirement shall not exceed 800 whereas the federal standard allows 1000.

We are interested in finding out if the automobile manufacturers are required to provide any specific test data that would indicate the actual axial acceleration of the head form as described in FMVSS Section 571.222, S5.3 Impact zone requirements or Sec tion 571.208. S6 Injury criteria. We are trying to determine if the information we are seeking is already available at one central point or if we must deal directly with each manufacturer individually.

Any assistance you can provide in helping us deal with this issue would be greatly appreciated.

Sincerely,

MARTIN V. CHAUVIN, Chief Carrier Safety Bureau

ID: nht87-1.37

TYPE: INTERPRETATION-NHTSA

DATE: 02/20/87

FROM: AUTHOR UNAVAILABLE; SIGNATURE UNAVAILABLE; NHTSA

TO: Robin Tallon

TITLE: FMVSA INTERPRETATION

TEXT:

The Honorable Robin Tallon U.S. House of Representatives Washington, DC 20515

Dear Mr. Tallon:

Thank you for your letter enclosing correspondence from your constituent Mr. George Seaborn of the South Carolina Association of School Superintendents, concerning Federal regulations for school buses. Your letter has been referred to my office for reply , since the National Highway Traffic Safety Administration is responsible for Federal programs relating to school bus safety.

In his letter to you, Mr. Seaborn expresses his concern about a Federal regulation that "excludes the use of vans capable of transporting more than 10 persons from use by schools." Mr. Seaborn explains that it would be difficult for school districts to c omply with a restriction on van use since large vans are extensively used for pupil transportation. He believes that schools should be permitted to use vans since those vehicles are safe for transporting passengers other than school children.

I appreciate this opportunity to clarify our school bus regulations. As explained below, there is no Federal prohibition directed against schools or school districts which restricts them from using vans carrying 11 or more persons. Federal law does, howe ver, affect the sale of buses to schools. NHTSA has the authority, under the National Traffic and Motor Vehicle Safety Act, to regulate the manufacture and sale of new motor vehicles. In 1974, Congress enacted the Schoolbus and Motor Vehicle Safety Amend ments to direct NHTSA to issue motor vehicle safety standards on specific aspects of school bus safety and apply those standards to all "school buses." The school bus standards we issued became effective April 1, 1977, and apply to each school bus manufa ctured on or after that date.

The parties subject to the Vehicle Safety Act are the manufacturers and sellers of new school buses. The Vehicle Safety Act requires each person selling a new "school bus" to ensure that the bus complies with our school bus safety standards. Under Federa l law, a van designed for 11 or more persons (driver included) is a "bus," and is a "school bus" if intended for transporting students to and from school or related events.

A person may sell a new bus (including a van designed to carry 11 or more persons) to a school or school district provided that the vehicle meets our motor vehicle safety standards for school buses.

Because our regulations apply only to the manufacture and sale of new motor vehicles, we do not prohibit school districts from using their large vans to transport school children even when the vehicles do not meet Federal school bus safety standards. Mat ters relating to motor vehicle use are determined by state law. However, in the event a South Carolina school district decides to buy a new school bus, we would like the district to keep in mind that the seller would be obligated under the Vehicle Safety Act to sell complying school buses. The seller should know that he or she risks substantial penalties if a noncomplying bus is sold as a school bus.

Since Mr. Seaborn is interested in transporting students in vans, I would like to clarify a few additional matters concerning our school bus regulations. In his letter to you, your constituent expresses a belief that large vans (i.e., buses) should be sa fe for school children since they are safe for other passengers. The legislative history of the Schoolbus amendments of 1974 indicate that Congress believed the need to protect school children who use school bus transportation is paramount. Large van bus es meeting our school bus safety Standards provide more safety features than other buses. School buses must meet stringent performance requirements, including those for interior protection, fuel systems, emergency exits, windows and windshields and seati ng systems.

New vans carrying 11 or more persons, conforming to our school bus standards, may be sold to school districts to transport their pupils to school related events. School districts may also purchase 9-passenger vans for school transportation, because such vans are considered "multipurpose passenger vehicles" (MPV's) and not "buses" or "school buses" under Federal law. We do not prohibit the sale of MPV's to carry school children nor do we require them to comply with Federal school bus safety standards. In stead, they must meet the performance requirements set by the safety standards for MPV's, which also provide high levels of passenger safety.

I hope this information is helpful. Please contact my office if we can be of further assistance.

Sincerely,

Erika Z. Jones Chief Counsel

Ms. Anne Graham Assistant Secretary for Legislation and Public Affairs 100 Maryland Avenue S.W. Room 3153 Washington. D.C. 20202

Dear Ms. Graham:

Enclosed, please find a copy of a letter from George Seaborn, President of the South Carolina Association of School Superintendents. regarding the prohibitive specifications for school vans.

I would appreciate your assistance in bringing me up to date on this matter, and the concerns expressed by Mr. Seaborn. as soon as possible.

Thank you for your consideration.

With best regards. I am

Sincerely,

ROBIN TALLON Member of Congress

RT/ma

Congressman Robin Tallon 432 Cannon House Office Building Washington, DC 20515

Dear Congressman Tallon:

You will see from the enclosed material that in 1977, the Department of National Highway Safety adopted a standard which excludes the use of vans capable of transporting more than ten persons from use by schools. None of the administrators in South Carol ina were aware of this legislation until recently. I am sure that you know that there are hundreds of these vans being operated by South Carolina school districts and many thousands more by school districts across our land. We have three in our school di strict which belong to the state and are furnished to us for the purpose of transporting children to our child development program. We also have our own vans which are used to transport small groups such as golf team, cheerleaders, etc.

All of these vans were legally purchased on the open market in South Carolina. It seems to me that if these vehicles are unsafe to transport youngsters then they are unsafe to transport any citizens in our nation. On the other hand, if they are considere d safe to transport citizens in this country who are not school students, they should be safe to transport school students. This regulation implies that certain classes of our citizens are entitled to higher safety standards than other classes.

I have been asked by my colleagues throughout the state to urge your immediate attention to this matter as all it is doing at the present time is creating additional liability for our schools systems. There is no way I can tell the parents for instance i n our child development program that we can no longer transport their children to their child development classes. I respectfully await your prompt action concerning this matter.

Sincerely,

George W. Seaborn, President South Carolina Association of School Superintendents

ID: nht87-1.38

TYPE: INTERPRETATION-NHTSA

DATE: 02/23/87

FROM: C.M. MEHTA -- AUTOLITE [INDIA] LIMITED

TO: NHTSA

TITLE: DOT APPROVAL ON HEADLAMPS/DRIVING LAMPS ETC FOR MARKETING IN USA

ATTACHMT: ATTACHED TO LETTER DATED 06/17/87 FROM ERIKA Z. JONES -- NHTSA TO C.M. MEHTA, REDBOOK A30, STANDARD 108

TEXT: Dear sirs,

Kindly refer to our letter No. 1476 dated 9.1.87 whereby we introduced ourselves as a reputed manufacturer and exporter of all types of Automobile Headlamp Assembly, Semi Sealed Beam Units, Fog Lamps etc., under trademark 'AUTOPAL'. We had requested you to send us following informations:

1. Details of DOT/SAE approval required in marketing our Headlamp Units 7", 5 3/4" (Round) and Rectangular small and large. (We had already sent you an illustrated catalogue of our products with the above letter).

2. Can we market these lamps as referred in Para No. 1 fitted with 9004, 9005 and 9006 Bulbs. If there is any specifications/technical details available with you, please send us a copy.

3. We understand that the use 9004, 9005, 9006 bulbs are permitted on Headlamps with lens and Reflectors made of Plastic. Kindly advise, if we can use these Reflector made of metal?

4. Details of approval required for High Beam Driving Lamps to be used for off-road vehicles.

5. The details of specifications for Driving Lamps to be used on Cars, Trucks etc.

In addition to the above, we further request you to please provide us the following specifications immediately by airmail:-

I) SAE-F-80 FRONT FOG LAMPS II) SAE-J-79 MOTOR CYCLE HEADLAMPS III) SPECIFICATION FOR DRIVING LAMPS USING H3 BULB.

Kindly send us the above informations/specifications urgently. If there is any charges for technical details/specifications, please inform us and send us your Proforma Invoice to cover the cost of the same when it will be remitted to you.

Awaiting to hear from you soon.

Thanking you, we remain

Yours faithfully,

ID: nht87-1.39

TYPE: INTERPRETATION-NHTSA

DATE: 02/24/87

FROM: Erika Z. Jones; NHTSA

TO: Hal McNamara

ATTACHMT: LETTER DATED 09/29/87 FROM ERIKA Z. JONES TO PETER MCINTOSH; LETTER DATED 01/01/87 (EST) FROM PETER MCINTOSH TO TAYLOR VINSON (OCC 797)

TEXT:

Mr. Hal McNamara McNamara Pontiac Inc. P.O. Box 3269 Orlando, FL 32802

Dear Mr. McNamara:

This is in reply to your letter of September 29, 1986, to Mr. Vinson of this office asking for an interpretation of Motor Vehicle Safety Standard NO. 108. You have enclosed a copy of a flyer for "Ad-A-Lens:" the device appears to be an overlay with a dea ler's name, intended to be placed over the lens of the center highmounted stop lamp. You have told us that "the company selling this product says there is no problem legally or safety-wise....." You have also furnished us with a portion of a preamble to the standard discussing the visibility requirements for the lamp in which the statement is made that beyond the specified test points "no requirements are established other than that the signal be 'visible,' which means any portion of the signal, without regard to lens area or candela."

Standard No. 108 does not prohibit adding an overlay to the center highmounted stop lamp that contains a dealer's name. However, the addition of the overlay must not create a noncompliance with Standard No. 108, in violation of the National Traffic and M otor Vehicle Safety Act.

Paragraph S4.1.1.41(a) requires each center highmounted stop lamp to have an effective projected luminous area not less than 4 1/2 square inches. Application of dealer identification to an original equipment lamp not designed for the overlay could well r educe the luminous area below the minimum required by the standard. Further, there is the possibility that the overlay could affect photometric compliance as well. The lamp must meet the photometric requirements at the 13 test points specified in Standar d No. 108 up to the maximum specified 10 degrees right and left. Beyond 10 degrees, up to 45 degrees right and left, the overlay must not obscure the signal so that no portion of it is visible.

Should the overlay create a noncompliance with Standard No. 108, any person offering for sale or selling a vehicle with it would be in violation of the National Traffic and Motor Vehicle Safety Act, as would any dealer adding an overlay to the lamp of a vehicle after it is sold. The Act provides that a penalty of up to $1000 per violation may be imposed, up to a maximum of $800,000 for any related series of violations. You should also seek the advice of State motor vehicle authorities on this matter.

We are providing a copy of this interpretation to Ad-A-Lens, and appreciate your bringing this matter to our attention.

Sincerely,

Erika Z. Jones Chief Counsel

cc: Ad-A-Lens

Mr. Tayor Vinson Legal Council NHTSA-FMVSS - 108 Department of Transportation 400 7th St. S.W. Washington, DC 20590

Dear Mr. Vinson,

Would you please give us your opinion of a new car dealer using "Ad-A-Lens" to add dealership identification using the high mounted stop lamp on a new vehicle. The company selling this product says there is no problem legally or safety-wise, but we would appreciate your opinion on any modification or addition to the stop lamp.

Sincerely,

Hal McNamara

HM/dp

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20820 Federal Register

Paragraph S4.1.1.41(b) requires that the signal be "visible to the rear through a horizontal angle from 45 degrees to the left to 45 degrees to the right ***". Koito asked what the agency considered "visible". This appears especially important for the de sign of the shroud on interior mounted lamps. In the agency's opinion, the lamp must meet the test points specified in Figure 10 up to the maximum specified 10 degrees right and left. Beyond those points until 45 degrees right and left, no requirements a re established other than that the signal be "visible", which means any portion of the signal, without regard to lens area or candela.

ID: nht87-1.4

TYPE: INTERPRETATION-NHTSA

DATE: 01/07/87

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: Joe Rutman -- President, Pathway Ltd.

TITLE: FMVSS INTERPRETATION

ATTACHMT: 2/10/86 letter from Erika Z. Jones to Timothy Pawl (Std. 108)

TEXT:

Mr. Joe Rutman President, Pathway Ltd. P.O. Box 88111 Grand Rapids, MI 49580

This is in reply to your letter of October 16, 1986, with reference to an electronic message display known as "Tellite"

We have reviewed your letter and our letter of February 10, 1986, to Timothy Pawl that you enclosed. The interpretation to provided Mr. Pawl was posited on the fact that Tellite was "in close proximity" to the center highmounted stop lamp which, in the a bsence of further explanation, we assumed meant either to the right or left of it. Your letter, however, indicates that the message function may be superimposed over the center lamp, though operating independently of it. Before we provide a definitive re sponse to your letter of October 16, 1986, we would appreciate your providing us with a photo or drawing of Tellite so that we will have a better understanding of it. We should also like to know what messages it is intended to display.

Sincerely,

Erika Z. Jones Chief Counsel

October 16, 1986

United States Department of Transportation National Highway Traffic Safety Administration 400 7th Street, S.W. Washington, D.C. 20590

Attention: Erika Z. Jones, Chief Counsel

Dear Ms. Jones:

Pathway Ltd. previously corresponded with you through a potential joint venture party regarding DOT approval of a concept which we now hope to move forward and promptly develop. Pathway has developed an electronic message display known as "Tellite". We b elieve, based on prior correspondence, that the circuitry and display conforms with, or is at least not in violation of, any NHTSA regulations or standards. Please note that this display board will incorporate the red, third brake light located in the re ar window of the vehicle. The circuitry for the red brake light is independent of the message circuitry and overriding. In other words, in the event that the brake is depressed, the third stop light (red LEDs) illuminates and the amber message LEDs are o verridden and are not illuminated during braking. (The amber message board is approximately 4 inches wide and 2 inches high).

It is our intention initially to sell this product as an aftermarket installation. However, we are also interested in pursuing the original equipment manufacturers. The purpose of this letter is to specifically request any direction you might provide reg arding whether our concept, as outlined, fails in any way to comply with any Federal (NHTSA) regulations for installation in the rear window of a passenger vehicle.

You should also know that the amber message board would not flash during display.

I look forward to your response. Please direct any further correspondence to my attention, Joe Rutman, President, Pathway Ltd., P.O. Box 88111, Grand Rapids, MI 49508. Thank you.

Very truly yours

Joe Rutman

(See 2/10/86 letter from Erika Z. Jones to Timothy Pawl)

ID: nht87-1.40

TYPE: INTERPRETATION-NHTSA

DATE: 02/26/87

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: Darryl M. Burman

TITLE: FMVSS INTERPRETATION

TEXT:

Darryl M. Burman, Esq. Messrs. Dotson, Babcock & Scofield 1200 InterFirst Plaza Houston, Texas 77002-5219

Re: Whether market and sale of headlamp covers are regulated by Federal law

Dear Mr. Burman:

This is in reply to your letter of January 9, 1987, asking for an interpretation of 49 CFR 571.108 Motor Vehicle Safety Standard No. 108 Lamps, Reflective Devices, and Associated Equipment. Your client wishes to import, market, distribute and sell a "cle ar, plastic headlamp cover...for all makes of cars manufactured in or imported to the United States." The stated safety purpose of the headlamp cover is "to protect the glass headlamps on automobiles from breaking."

Three methods of distribution are contemplated: direct sale by your client, sale through auto parts distribution centers, and sale as optional but uninstalled equipment at the time of the vehicle's original sale (the cover in its wrapping would be in the vehicle trunk). You state that the headlamp cover is not intended to be installed by your client, or its distributors and dealers, but will be accompanied by instructions so that the vehicle owner may install it. Warnings will be provided "about minimum Federal photometric requirements". You wish to know whether the headlamp cover is subject to Standard No. 108 or any other Federal regulation and, if so, the effect and impact of such regulation.

A plastic headlamp cover is "motor vehicle equipment", defined in pertinent part by Section 102(1) of the National Traffic and Motor Vehicle Safety Act (15 USC 1391(4)) as "any...accessory, or addition to the motor vehicle...." Its importer is a "manufac turer", defined in pertinent part by Section 102(5) of the Act as "any person importing...motor vehicle equipment for resale". As a manufacturer of motor vehicle equipment your client has the responsibility imposed by Sections 151 et seq of the Act to no tify and remedy in the event that either it or this agency determines that a safety related defect exists in the product, or that it fails to comply with all applicable Federal motor vehicle safety standards. You have already noted that headlamp covers a re not "a regulated safety device" under Standard No. 108. A "defect" under Section 102(11) includes "any defect in performance, construction, components, or materials". Under the best of circumstances a plastic cover when new will reduce light output of a headlamp beneath its designer's intent, whether or not the output falls below the floor established by Standard No. 108 as a minimum for headlamp performance. In service, a plastic headlamp cover may contain condensation under certain climatic conditi ons, or grow increasingly opaque through exposure to ultraviolet rays or other atmospheric components, either of which would further affect the design performance of the headlamp. A conclusion could be reached that such a cover contained a safety related defect and that its importer should notify all purchasers and remedy according to the Act.

Safety problems associated with headlamp covers led to their prohibition when the headlamp is in use, initially under SAE J580 for sealed beam headlamps and later by its incorporation into Standard No. 108, for both sealed beam and replaceable bulb headl amps. The specific prohibition of J580 is why passenger cars are not manufactured with original equipment headlamp covers. Under Section 108(a)(l)(A) of the Act, if a dealer sells a noncomplying motor vehicle, he is in violation of the Act, and may be su bject to civil penalties for it. These penalties, under Section 109, range up to $1000 for a single violation, with a cumulative total of $800,000 for a related series of violations. If a dealer at time of sale provides the means through which a new car meeting all Federal safety standards may be rendered noncompliant immediately after its delivery, we would regard that as tantamount to his having sold a noncomplying motor vehicle in violation of the Act.

Although there is no Federal prohibition against a vehicle owner installing and using headlamp covers, there may nonetheless be local laws covering the sale and use of this equipment. We offer no views of your client's potential exposure under common law , in such situations as use of a deteriorated cover, or when used with a substandard replacement headlamp, except to note that photometric "warnings" may serve no defensive purpose. Photometric values at the individual test points are judged under labora tory conditions. Service facilities do not contain equipment by which on-vehicle compliance of the headlamp can be judged, and the eye is a subjective and unreliable source to discriminate between complying and noncomplying levels of light output.

I hope that this answers your questions.

Sincerely,

Erika Z. Jones Chief Counsel

January 9, 1987

National Highway Traffic Safety Administration Erika Z. Jones, Chief Counsel 400 7th Street, S.W. Washington. DC 20590

Re: Letter ruling to determine if market and sale of headlamp covers are regulated by federal law

Dear Ms. Jones:

REQUEST FOR RULING

Our client is in the process of forming a Texas corporation (the "Company") to engage in those activities described below, and, on its behalf, we are requesting an interpretation of Motor Vehicle Safety Standard No. 108 Lamps, Reflective Devices, and Ass ociated Equipment ("Standard 108") and other related or applicable rules or regulations of the Department of Transportation. The reason for this request is the lack of specific guidance in determining (i) if the product our client will import, market and sell will be subject to such regulation, or any other federal regulation, and, (ii) if so, the effect and impact of such regulation. The product, which the Company intends to market, sell and distribute and for which the Company seeks approval by the Na tional Highway Traffic Safety Administration ("NHTSA"), is a clear, plastic headlamp cover (the "Headlamp Cover") for all makes of cars manufactured in or imported to the United States.

STATEMENT OF FACTS

The Company proposes to engage in the importation and marketing of the Headlamp Cover, either through direct sales to ultimate consumers or through sales to automobile dealers, distributors and automotive parts distributors. The Headlamp Cover is designe d to protect the glass headlamps on automobiles from breaking. The Company, distributors, automotive dealers and others will not physically install the Headlamp Cover on automobiles. However, the Company does intend to provide warnings and instructions i n the packaging so that the owner of the vehicle may purchase the proper Headlamp Cover and safely install it.

The Company, proposes to distribute the Headlamp Cover in one or more of the following manners:

1. Over-the-counter. The Company wishes to market and distribute its Headlamp Cover to auto parts distributor centers for sale to the consumer. These distribution centers will be instructed not to participate in the installation of the Headlamp Cover.

2. Option offered by Dealer. The Company will sell and distribute the Headlamp Cover to automotive distributors and dealers who will offer them as accessories to purchasers of new automobiles. The automotive distributors or dealers will place the Headlam p Cover, in its original packaging, in the trunk of the automobile and will not install it for the consumer. Automotive distributors of imported automobiles will place the Headlamp Cover in trunks of automobiles at the port of arrival and list the Headla mp Cover on the price sticker as well as the invoice to the dealer.

3. Direct to consumer. The Company also desires to sell its Headlamp Cover directly to consumers, again, with no installation services offered.

CHRYSLER RULING

The Company is aware of a fairly recent denial of petition for rulemaking by the NHTSA regarding an attempt by Chrysler Corporation ("Chrysler") for an amendment to Standard 108 to allow Chrysler to offer removable transparent Headlamp Covers as original equipment on motor vehicles manufactured by Chrysler. It is our client's understanding that such petition was denied primarily because Chrysler's Headlamp Covers caused a reduction in light output between 7.2% and 15.5% and it was conceivable that certa in replacement headlamps purchased by consumers would produce an unacceptable light output when used in conjunction with the Chrysler Headlamp Cover.

The Company believes its proposed activities should be differentiated from those of Chrysler and should not be subject to federal regulation. The differences between the Company's proposal and Chrysler's proposal are: (i) the Company intends to market an d sell, but not manufacture and install, the Headlamp Cover, (ii) the Headlamp Cover is not a regulated safety device as defined in Standard No. 108, (iii) the Headlamp Cover will not be original equipment installed on an automobile at the time of purcha se and will not be installed by the Company. the distributor or the dealer, as prohibited by SAE J580 Sealed Beam Headlamp Assembly and (iv) the Headlamp Cover will not be marketed as a dealer installed option.

Additionally, the Chrysler ruling dealt specifically with the sealed beam headlamp assembly while the Company proposes to initially sell Headlamp Covers for the bulb and reflector type headlamp assembly found on many makes of cars sold in the United Stat es today.

However, similar to Chrysler, the Headlamp Cover, when used with original headlamps furnished by the manufacturers of the automobiles, will satisfy minimum federal photometric requirements.

CONCLUSION

The Company believes its activities should not be compared to those of Chrysler. It is aware that there may exist circumstances or possibilities where the Headlamp Cover may be misused, but intends to make information available to all parties who sell th e Headlamp Cover directly to consumers regarding photometric warnings. The product will also be packaged so that warnings are found on the exterior of the package to warn consumers about minimum federal photometric requirements. The interior of the packa ge will contain complete and accurate instructions for consumer installation of the Headlamp Cover.

The Company questions whether the Headlamp Cover or the contemplated activities of the Company, the distributors and dealers who will sell the Headlamp Cover, fall within federal regulated guidelines. Therefore,the Company hereby requests a ruling differ entiating its sale of the Headlamp Cover from Chrysler and permitting the Company. and the distributors and dealers to whom it sells the Headlamp Cover, to market and sell this product in accordance with the procedures discussed above.

We appreciate your attention to this matter and would be grateful for your prompt response.

If we can provide you with additional information, please do not hesitate to contact us.

Very truly yours,

Darryl M. Burman

ID: nht87-1.41

TYPE: INTERPRETATION-NHTSA

DATE: 02/26/87

FROM: THERESA ROONEY -- ALPINE ELECTRONICS OF AMERICA, INC.

TO: ED GLANCY -- LEGAL COUNSEL, FMVSS-101 NHTSA

TITLE: RE: FMVSS-101

ATTACHMT: ATTACHED TO LETTER DATED 3/07/89 FROM ERIKA Z. JONES -- NHTSA TO THERESA ROONEY, REDBOOK A33, STANDARD 101

TEXT: Dear Mr. Glancy:

I am writing to you on recommendation from Mr. Cavey of the National Highway Traffic Safety Association. He suggested that I might contact you to get written confirmation of our interpretation of the above ruling to be enacted 9/1/89.

It is my understanding that any car sound system which has been factory installed must be equipped with light intensities that have two values, a higher one for day, and lower one for night. These two light intensities do not have to be variable and any color may be used to illuminate the system.

If possible, I would like to receive written confirmation of this correct interpretation from your office for our records.

Any assistance that you may provide in this matter would be greatly appreciated.

Sincerely,

ID: nht87-1.42

TYPE: INTERPRETATION-NHTSA

DATE: 03/02/87

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: Douglas C. Fairhurst -- Townley and Update

TITLE: FMVSS INTERPRETATION

TEXT:

Douglas C. Fairhurst, Esq. Townley & Update 405 Lexington Avenue New York, NY 10174

Thank you for your letter concerning how the requirements of Standard 208, Occupant Crash Protection, would apply to an arrangement Jaguar has made for having its XJS hard-top model imported into the United States altered to become a convertible. You hav e raised a number of issues in your letter, which are addressed below.

You explained that "Jaguar has entered into a contractual arrangement with a company that specializes in converting hard-top vehicles into convertible models, the essential provisions of which obligate Jaguar to cooperate with and assist the converter in the latter's effort to secure orders from Jaguar's retail dealers for converting Jaguar XJS models imported into the United States into convertibles." You further explained that "The retail dealers to whom Jaguar sells the XJS will be encouraged to have any conversion work they desire to have done on the vehicles performed by this particular converter, although of course, they remain free to have conversion work done by anyone else if they so wish. Essentially Jaguar will facilitate the arrangement wit h its converter by making shipments of vehicles designated for conversion work by dealers directly to the converter's facilities. Under the contract, the converter has the responsibility of certifying that the vehicles on which it performs this work rema in in compliance with all applicable motor vehicle safety and emissions standards . . . ."

The first issue you raised is the application of S4.1.3.1.1 of the standard to this arrangement. That section requires each vehicle manufacturer to install automatic restraints in at least 10 percent of the passenger cars it produces during the time peri od, September 1, 1986 to August 31, 1987. You stated that Jaguar intends to meet the 10 percent requirement by installing automatic safety belts in its XJS models. You asked whether, assuming all the XJS models imported into the United States have automa tic safety belts and the total number of XJS models far exceeds the number of vehicles jaguar must equip with automatic restraints to meet the 10 percent requirement, it would be a violation of section 108(a)(2)(A) of the National Traffic and Motor Vehic le Safety Act for Jaguar's dealers and Jaguar's authorized converter to remove the automatic safety belt in the "excess" vehicles and install manual Safety belts that comply with the requirements of Standard No. 208 and 209 in those vehicles.

It would not be a violation of section 108(a)(2)(n) for Jaguar's dealers and the converter to alter the "excess" XJS hard-top models into convertibles and reinstall manual rather than automatic safety belts into the altered vehicle. Under our certificati on regulation, a person that alters a certified vehicle must certify that the vehicle, as altered, conforms with all applicable safety standards. The agency has previously said, such as in a January 11, 1979 letter to James Brown, that when a vehicle is altered from one vehicle type to another, the alterer must certify that the vehicle conforms to the safety standards that apply to the new vehicle type, in this case a convertible. Convertibles are temporarily exempt from the automatic restraint requirem ents of Standard No. 208 during the phase-in period, and may instead have either a manual lap or lap/shoulder belt.

Please note that the agency's final decision in the ongoing rulemaking on applying the automatic restraint requirement to convertibles may affect the conversion of hard-top cars into convertibles. If the agency does not exempt convertibles permanently fr om the automatic restraint requirement, then a vehicle alterer would have to ensure that the altered cars still complied with the automatic restraint requirement. Likewise, if the agency applied a dynamic test requirement to the manual safety belts used in convertibles, a vehicle alterer would have to equip an altered vehicle with either manual safety belts meeting the dynamic test requirements or with an automatic restraint system.

Having addressed the issue of the alterer's responsibility, I would like to explain how these conversions affect Jaguar. It is Jaguar's responsibility under section 4.1.3.1.1 to produce 10 percent of its passenger cars equipped with automatic restraints during the first stage of the phase-in period. In the factual situation you have described, jaguar has entered into a contract to facilitate the conversion of some of its automatic restraint-equipped hard-top models into manual belt-equipped convertibles before the cars are first sold to a consumer. Since Jaguar has consented to the conversion, and in fact will be encouraging its dealers to use a particular "authorized" converter, jaguar cannot count a vehicle that has undergone an authorized conversion in determining whether it has produced sufficient vehicles equipped with automatic restraints. These conversions would reduce both the number of cars that would have to be equipped with automatic restraints, and the number that are equipped with such re straints. Thus, Jaguar should carefully monitor the number of conversions to ensure that there will still be a sufficient number of automatic restraint-equipped vehicles to still be a sufficient number of automatic restraint-equipped vehicles to meet S4. 1.3.1.1.

I also want to address one further issue concerning the altered vehicles. S4.1.3.1 of the standard provides a carryforward credit to manufacturers for the automatic restraint equipped vehicles they produce in excess of the required phase-in percentages. Since, as explained above, Jaguar cannot count vehicles that have undergone an authorized conversion in determining whether Jaguar has met the phase-in requirements, Jaguar also cannot use those vehicles for the purpose of the carryforward credit.

If you have any further questions, please let me know.

Sincerely,

Erika Z. Jones Chief Counsel

July 2, 1986

Erika Jones, Chief Counsel National Highway Traffic Safety Administration 400 Seventh Street, S.W. Washington, D.C. 20590

Dear Ms. Jones:

This follows up our discussion last Thursday regarding the post-September 1, 1986 passive restraint requirements of FMVSS 208 as they would apply to the arrangement jaguar has made in the United States for having XJS hard-top models made into convertible s. At the conclusion of our meeting, I said I would frame the specific question on which Jaguar sought an advisory opinion from NHTSA and relate to you the material facts.

The salient facts are these. Jaguar has entered into a contractual arrangement with a company that specializes in converting hard-top vehicles into convertible models, the essential provisions of which obligate Jaguar to cooperate with and assist the con verter in the latter's efforts to secure orders from Jaguar's retail dealers for converting Jaguar XJS models imported into the United States into convertibles. The XJS, as I explained, is the 12 cylinder, two-door sports model which Jaguar offers to its dealers in two versions, the XJS-HE, which is the, hard-top coupe and the XJ-SC Cabriolet, the latter having the open-top feature of a convertible, but with the "B post" intact and a removable top consisting of interlocking targa panels. The retail deal ers to whom Jaguar sells the XJS will be encouraged to have any conversion work they desire to have done on the vehicles performed by this particular converter, although, of course, they remain free to have conversion work done by anyone else if they so wish. Essentially Jaguar will facilitate the arrangement with this converter by making shipments of vehicles designated for conversion work by dealers directly to the converter's facilities. Under the contract, the converter has the responsibility of cer tifying that the vehicles on which it performs this work remain in compliance with all applicable motor vehicle safety and emissions standards, and, as I explained, there are provisions under which Jaguar will be providing the converter with financial as sistance.

The issue I raised respecting the applicability or Regulation S4.1.3.1.1 (49 C.F.R. 571.208, S4.1.1.3.2) to this project arises by virtue of the intention of Jaguar to meet its obligation to fit passive restraint systems in no less than 108 of the vehicl es Imported into the country between September 1, 1986 and September 1, 1987 by installing automatic seat belts in the XJS models I have just described. The specific question Jaguar poses to NHTSA is whether, if all of the aforementioned XJS models impor ted into the United States were equipped with automatic seat belts (this being a number far exceeding the actual number of vehicles that need be fitted with such belts in order for Jaguar to meet the 108 requirement), it would be lawful under the Safety Act for Jaguar's dealers and the converter with which Jaguar has made this contract to remove the automatic belts in the "excess" vehicles and refit these vehicles with manual seat belts that comply with the requirements of FMVSS 208 and 209 as these app ly to convertibles? This removal and refitment operation is necessary because the process of converting the vehicle entails removal of the "B post" to which part of the assembly mechanism used in the automatic seat belt is affixed. As I say, the converte r will be recertifying that each converted vehicle conforms to all applicable federal motor vehicle safety standards and Jaguar will be selling to its dealers sufficient numbers of XJS models equipped with automatic seat belts to meet its 108 obligation.

Since the converted vehicles would continue to meet the requirements of FMVSS 208 and 209, it was and remains my view that under these circumstances the removal of automatic belts installed by the factory on an "optional" basis would not "impair" or rend er inoperative any device installed to meet a safety standard and hence would not constitute a violation of 15 U.S.C. S1397(a)(2)(a).

We would appreciate confirmation of this view and any other comments you feel are appropriate.

Very truly yours,

DOUGLAS C. FAIRHURST